Johnson v. Galveston, H. & N. Ry. Co.

• Decision Date: 31 January 1902
• Citation: 66 S.W. 906
• Parties: JOHNSON et al. v. GALVESTON, H. & N. RY. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

66 S.W. 906

JOHNSON et al. v. GALVESTON, H. & N. RY. CO.¹

Court of Civil Appeals of Texas.

January 31, 1902.

Appeal from district court, Harris county; Wm. H. Wilson, Judge.

Action by Jennie L. Johnson and others against the Galveston, Houston & Northern Railway Company. From a judgment for defendant, plaintiffs appeal. Affirmed.

Lovejoy, Sampson & Malevinsky and M. E. Kleberg, for appellants. Baker, Botts, Baker & Lovett and A. L. Jackson, for appellee.

GILL, J.

This suit was brought against the appellee by Mrs. Jennie L. Johnson for herself and as next friend of the minors Vesta B., Octavia, and Virgil B. Johnson to recover damages for the death of Byron Johnson, the husband of plaintiff and the father of the minors. Herbert Austin, as next friend of Phyllis Johnson (a child of deceased by a former wife), joined in the suit. A trial by jury resulted in a verdict and judgment for defendant, from which plaintiffs have prosecuted this appeal.

The petition of plaintiffs, after the necessary formal allegations, contained the following: "That on or about the 24th day of February, the plaintiff Jennie L. Johnson, together with her husband, Byron Johnson, were passengers on one of the trains of the defendant company, traveling from Galveston to Houston, Texas. That at a point on defendant's line of railway known as `Deep Water' the train was derailed. That in said derailment the said Byron Johnson received injuries which resulted in his death. That the derailment was due to the negligence of the defendant, and that the death of the said Byron Johnson was directly and proximately caused and occasioned by the negligence and carelessness of the defendant company, its servants, agents, and employés, in that: (a) Said company, its servants, agents, and employés, negligently and carelessly maintained its line of railroad at the point of said derailment in a defective and unsafe condition, in that the ties supporting said rails were rotten and worn out; that the spikes holding the rails to the ties were loose, and the roadbed unballasted and out of repair to such an extent that the rails spread, —all of which caused said derailment, as aforesaid. (b) That the defendant, its servants, agents, and employés, negligently and carelessly ran and operated said train at a dangerous and excessive rate of speed, considering the unsafe and defective condition of its track and roadbed, in that said train of cars was running at the time at a rate of speed exceeding twenty-five miles per hour, and which, considering the defective and insufficient condition of the roadbed and track, was hazardous and dangerous." The defendant interposed a general demurrer, and answered that it was not guilty of the wrongs and negligence charged against it. The facts are as follows: On the day alleged in the petition, deceased, with his wife and family, took passage on one of defendant's passenger trains at Galveston, Tex., intending to go to Sour Lake. Near a point called "Deep Water" on defendant's line between Galveston and Houston, and while the train was traveling at a speed of between 30 and 40 miles an hour, a large portion of the train was derailed, and the entire train brought to a sudden and violent stop. As a result of the derailment, deceased was thrown against the corner of a seat, and injured. He died about 10 days afterwards. As to the extent of his injuries, and whether they caused his death, the evidence was conflicting. The evidence was also conflicting as to whether the derailment was due to any of the causes alleged in the petition, and as to whether it was due to defendant's negligence in any respect. From the evidence of those witnesses who testified with reference to the nature and causes of the accident we gather the following facts: The engine and tender did not leave the rails, and at the point where the engine and tender stopped the rails were in place and in proper alignment. The rear trucks of the tender were missing from their place, and the rear end of the tender was in contact with the track. The rear trucks of the rear sleeping car did not leave the rails, and the rails under them and from thence south toward Galveston were in place and alignment. From the rear trucks of the rear sleeper to the point where the engine and tender stopped, the track was badly torn up, the rails being spread and out of place, the ties torn up and broken, and all the intervening cars or coaches were off the track, the baggage car being entirely off the roadbed. At a point on the track about 60 feet south of the rear end of the last sleeper a hole was found between the rails, and the ties at that point were damaged and pushed together under the rails. Near this, and to one side of the roadbed, was found one of the wheels and a part of the axle of the rear truck of the tender. The axle of the rear truck of the tender had evidently broken at or near that point. One of the wheels and the fragment of the axle had been pressed between the ties by the passing train, thus making the hole and jamming the ties together, and had then in some way been thrown out to one side. No part of the train was derailed at this point, but, as above stated, the rails remained in place, and with sufficient strength to permit the passing of the entire train except the engine and tender, which had, of course, practically passed the point before the axle broke. The other tender wheel, with its part of the broken axle, fell under the cars, and caused the derailment and destruction beyond that point. There was testimony to the effect that some of the ties were rotten, and that the roadbed was unballasted, and in a bad state of repair; but as to these conditions, and the extent to which the safety of the track was affected thereby, the evidence was conflicting. Dickson, an expert, testified as to the proper manner of testing the strength of axles, and further stated that the breaking of an axle was an exceedingly rare accident; that out of 5,000,000 in use in the United States not over 8 or 9 a week were broken. He further testified that such breaks were not always due to defects in the axle, and that an axle was much more liable to break on an uneven and poorly ballasted track than on a firm smooth track. The court submitted the issues to the jury, but refused to allow a recovery should the derailment be found to be due to any other cause than one of those named in the pleadings of plaintiffs.

By the first assignment of error appellants assail the following portion of the court's charge: "If you believe such broken axle was the sole cause of the accident, you will find for defendant." It is contended that this portion of the charge is error: First, because it ignores the derailment, which itself raised a presumption of negligence; second, the charge excused the defendant notwithstanding the broken axle might have been due to the negligence of defendant; and, third, because it was a charge on the weight of the evidence. The point thus presented was also raised by a requested charge to the effect that, if the jury believed the derailment was due to the negligence of the company, and proximately caused the death of deceased, they would find for plaintiff, which charge the court refused to give. Appellants contend that, notwithstanding they pleaded specially the causes of the derailment and the specific negligence on which they rely for recovery, they should not be confined to those allegations; that, having shown the derailment and the resulting injury, negligence would be presumed unless the appellee rebutted the presumption by proof that it was not at fault as to any efficient cause of the wreck. One phase of the assignment presents a question of pleading, and this we will determine first. It is a general and well-established rule that when one having a right to rely upon general allegations for the admission of his proof chooses to plead specially the facts upon which he relies for recovery, he must confine his proof to the facts alleged, and can recover...